NARF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 382

FEDERAL COURT OF AUSTRALIA

NARF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 382 NARF OF 2002 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 99 OF 2003 JACOBSON J 30 APRIL 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 99 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NARF of 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 30 APRIL 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 99 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NARF of 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 30 APRIL 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 This is an appeal from a decision of Raphael FM delivered on 22 January 2003 dismissing an application for review of the decision of the Refugee Review Tribunal ("the RRT"). 2 The decision of the RRT was handed down on 16 July 2002. The RRT affirmed a decision of a delegate of the Minister refusing the grant of a protection visa. The decision of the RRT 3 The appellant claimed to have a well-founded fear of persecution on political grounds. He said that he was active in the Bangladesh National Party's ("BNP") Student Wing. I will refer to this as "the JCD". He claimed to have fallen foul of activists in the BNP's main rival, the Awami League ("AL"). 4 The appellant said that he had become unpopular with a group of JCD activists who were jealous of him. But the thrust of his claim was that an important local businessman had asked him to join the AL and, when he had refused, the businessman had ordered various members of the AL and the BNP to kill him. He claimed that they filed a number of false charges against him. He said that, in December 1999, those persons had beaten him up and his father had arranged for him to leave Bangladesh for Australia. 5 The RRT accepted that the appellant had been an activist in the JCD until he left Bangladesh. However, the RRT observed that the BNP had been in power in Bangladesh since October 2001 and, accordingly, it could not be said that the appellant feared persecution now that his own party was in government. 6 The RRT rejected as "strongly implausible" the appellant's claim that a businessman had mounted a campaign of terror against him in order to attract him to join the AL. 7 The RRT was prepared to accept that the appellant might have encountered threats and harm from opponents and rivals in the JCD and from the AL in the course of his political work. 8 However, the RRT said that, given the appellant's stated lack of importance in the political area, it was implausible that he would have attracted harm to the extent that he claimed. 9 The RRT observed that, given that the appellant did not intend to re-enter politics on return to Bangladesh, the RRT did not consider that he would be of further concern to his old political rivals and it was therefore not satisfied that he would encounter any further risk of harm from them. 10 The RRT went on to say that, if for some reason the appellant were to be threatened with harm for political reasons in the future, upon the basis of independent evidence accepted by the RRT, the appellant can avail himself of the protection of the authorities in Bangladesh. 11 The RRT did not accept claims made by the appellant that false charges had been laid against him. The claims were found to lack credibility because of the appellant's admission of his low political profile. 12 In any event, the RRT found that, even if false charges were laid, the appellant would be able to obtain protection from the authorities in relation to them. Indeed, the RRT found that independent evidence showed that the courts of Bangladesh are independent and that they could be relied upon to provide protection from any false charges. The application for review 13 The application was in a form commonly filed in the Court. It was obviously prepared by a person who has some knowledge of migration law. I note that the appellant's "adviser" in the application to the RRT was Mr M H Kazi of Kazi & Associates, Marrickville, Sydney. I do not know whether Mr Kazi prepared the application which was filed on 9 August 2001. 14 The application referred to a decision of Merkel J in Walton v Phillip Ruddock Minister for Immigration and Multicultural Affairs [2001] FCA 1839 in which his Honour said that the terms of s 75(v) of the Constitution would be defeated if the privative clause contained in s 474 of the Migration Act 1958 (Cth) ("the Act") operated to protect against jurisdictional error. High Court authorities were cited in support of this proposition. The application contended that the RRT's decision was affected by actual bias constituting jurisdictional error and error of law. 15 The appellant filed written submissions which were also prepared by someone with knowledge of migration law. The submissions repeated most of what appeared in the application. However, the initial part of the written submissions relied upon the decision of the High Court of Australia in Muin v Refugee Review Tribunal (2002) 190 ALR 601 ("Muin"). 16 The thrust of the written submissions in relation to the issues raised by the decision in Muin was that the appellant was said to have been misled into believing that the RRT had read some information in the Part B documents which were favourable to his case. The decision of the Federal Magistrate 17 The learned Federal Magistrate dismissed the application for review on three bases. First, he referred to the decision of the Full Court of the Federal Court in NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 ("NADR") and pointed out that, in that case, as in the present proceeding, there was no evidence that the appellant was misled; see NARF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 15 at [7] and [9]. 18 Second, he said that, putting the case at its highest, the appellant could only argue a breach of natural justice and this was not an answer to the privative clause as that was construed by the Full Court of the Federal Court in NAAV v Minister for Immigration (2002) 193 ALR 449 ("NAAV"). 19 Third, the learned Magistrate said at [10] that there was no basis for making the assertion, which he did, that the RRT did not enter into its task in a bona fide manner. The appeal 20 The notice of appeal set out two grounds. The first ground was that the Federal Magistrate failed to find error of law, procedural fairness, jurisdictional error, denial of natural justice or relief under s 39B of the Judiciary Act 1903 (Cth). The particulars of this ground were in very general terms. 21 The second ground of appeal was that there had been a constructive failure of jurisdiction by the delegate of the Minister who is said to have failed to address the correct legal question and to have made certain other errors. 22 The second ground of appeal was not pursued before the learned Magistrate and may not be raised on an appeal. 23 The appellant appeared before me in person. He is a young man who was not able to grapple with any issues of law raised by the appeal. He was assisted by a Bangladeshi interpreter. 24 He put two submissions. The first submission was to the effect that the RRT had wrongly decided the merits of his application against him. This is not a ground of appeal. 25 The second submission was an assertion which the appellant made from the bar table that the charges in Bangladesh have now been decided against him in his absence. He said that if he returns to Bangladesh, he will be sentenced to six months gaol on the charges which he said were false. 26 This claim was not put to the RRT because the appellant claims to have learned about it only very recently. Accordingly, it cannot be a ground of appeal. 27 It is not for me to comment upon the possibility of the appellant seeking to bring a new claim. However, whether the appellant wishes to make a request to the Minister under s 48B of the Act for permission to make a fresh application based on changed circumstances is a matter for him. Even if there are changed circumstances, as the appellant contends, they can have no bearing on the outcome of this appeal. 28 In addition to his oral submissions, the appellant relied upon the written submissions which were filed on his application for review by the Federal Magistrate. 29 Insofar as these submissions seek to rely upon the decision in Muin, the learned Magistrate was clearly correct in rejecting this ground. 30 As Hely J said in NADZ v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 118 at [14], after referring to the decision of the Full Court in NADR:- '… Muin holds that there is a want of procedural fairness where an applicant before the RRT is misled into thinking that the RRT has considered particular relevant information favourable to the applicant, and as a result, the applicant does not ensure that such information is placed before the RRT, or drawn to its attention. The later decision of the High Court in Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) HCA 6, confirms that an applicant in a case such as the present must show that he relied to his disadvantage upon communications from the RRT before there is any question of a want of procedural fairness.' 31 There was no evidence in this case that the appellant was misled in accordance with the test stated by Hely J. 32 There was no other basis upon which it was suggested that there was a denial of procedural fairness. Thus, although the learned Magistrate ultimately decided the procedural fairness issue on the approach stated by the Full Court in NAAV, there is nothing in this matter which discloses jurisdictional error. Orders 33 The orders I propose to make are that the appeal is dismissed with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: Date: 30 April 2003

The appellant appeared in person.

Counsel for the Respondent: Mr S Lloyd

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 24 April 2003

Date of Judgment: 30 April 2003